Firearms Regulation at the Local Government Level

In the wake of the latest mass shooting at a high school in Parkland, Florida, many citizens and elected officials are asking what their local governments can do to prevent such tragedies in the future. While there is no easy solution, some feel that stronger gun control measures would help.

Washington State has largely preempted the field of firearms regulation and there are constitutional limits on how guns may be regulated. City and county governments do, however, have some ability to enact policies locally.

This blog post will provide an overview of the parameters of state preemption of firearms regulation, as well as set forth some known options available to local governments.

State Preemption of Firearms Regulation

The state has placed significant restrictions on the ability of local government to adopt regulations that place greater restrictions than state law related to firearms. RCW 9.41.290 provides:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Under state law, possession of firearms is prohibited in several types of places, including jail facilities, court facilities, schools, mental health facilities, secure portions of airports, the areas of restaurants and bars that are off-limits to individuals under the age of 21, and outdoor music festivals (see RCW 9.41.300(1) and RCW 70.108.150). However, state law does not prohibit possession of firearms in libraries, hospitals, parks, and other public facilities not listed in RCW 9.41.300(1).

Pursuant to the state preemption statute, a local government has express authority to enact laws and ordinances:

Restricting the discharge of firearms in any portion of their respective jurisdictions where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized, within constitutional limits.

Restricting the possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, with some limited exceptions.

Restricting firearms from being sold within 500 feet of a school.

Local governments also have express authority to enact zoning laws that apply to, but do not single out, gun businesses.

On March 21, Seattle Mayor Jenny Durkan and Councilmember M. Lorena Gonzalez announced a plan to propose legislation that would require gun owners to lock up firearms in their homes and vehicles. The mayor, acknowledging a likely challenge on the state preemption issue, stated: “This is not an anti-gun measure. This is a gun-safety measure.” The city attorney intends to work with the mayor and council to defend any lawsuit. Seattle already requires gun owners to report lost or stolen firearms within 24 hours.

Court Decisions

Washington courts have reviewed certain local actions and regulations relating to firearms. The following are some key holdings.

Cherry v. Municipality of Metro. Seattle, 116 Wn.2d 794. RCW 9.41.290 does not preempt the authority of a municipal employer to regulate or prohibit employees’ possession of firearms while on the job or in the workplace.

Watson v. City of Seattle, 189 Wn. 2d. 149 (2017): A City of Seattle ordinance imposing a tax on firearms and ammunition was upheld by the Washington State Supreme Court. The court found the preemption statute did not apply because the ordinance imposed a tax, not a regulation, and the primary purpose of the ordinance was to raise revenue for gun violence research, not to regulate firearms.

Chan v. City of Seattle, 164 Wn. App. 549 (2011): A City of Seattle regulation restricting the possession of firearms in various types of park facilities was struck down by the Washington Court of Appeals.

Pacific Northwest Shooting Park Ass’n v. City of Sequim, 158 Wn. 2d. 342 (2006): Sequim’s decision to impose conditions on a permit for private use of city convention center for a gun show was upheld. In this case, the court determined that preemption did not apply because the city acted in a proprietary capacity (i.e., as a property owner).

Destruction of Forfeited Firearms

Local governments have the authority to destroy judicially forfeited and unclaimed firearms, with some limited exceptions. These include firearms seized during an arrest, those that are illegally possessed, or those that may have been turned in to law enforcement and remain unclaimed by their owners. RCW 9.41.098 provides, in relevant part:

[F]irearms that are: (i) Judicially forfeited and no longer needed for evidence; or (ii) forfeited due to a failure to make a claim under RCW 63.32.010 or 63.40.010; may be disposed of in any manner determined by the local legislative authority. Any proceeds of an auction or trade may be retained by the legislative authority.

Some cities have adopted policies and ordinances directing the destruction of such firearms. Here are some code examples that either mandate or include the option of destroying the firearms.

A side note: Unlike the discretion given to local governments, state law prohibits the Washington State Patrol from destroying forfeited firearms unless they are illegal firearms. Instead, the agency must resell the vast majority of them. A bill was reintroduced in the legislature this year to give the state patrol the option to destroy forfeited firearms; however, the bill failed to pass (see HB 1483 and this article on forfeited weapons).

Conclusion

While local governments are constrained in many ways by state law and the constitution, there are some actions they may take related to firearms. If you are aware of other policy options available to cities and counties, please contact me at jdvorkin@mrsc.org or share this information in the comment section below.

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.

About Jill Dvorkin

Jill joined MRSC as a legal consultant in June 2016 after working for nine years as a civil deputy prosecuting attorney for Skagit County. At Skagit County, Jill advised the planning department on a wide variety of issues including permit processing and appeals, Growth Management Act (GMA) compliance, code enforcement, SEPA, legislative process, and public records. Jill was born and raised in Fargo, ND, then moved to Bellingham to attend college and experience a new part of the country (and mountains!). She earned a B.A. in Environmental Policy and Planning from Western Washington University and graduated with a J.D. from the University of Washington School of Law in 2003.

Comments

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Gun violence is terrible and heinous and I do not believe anyone will argue it otherwise. As we continue to see violent crime rise in the Seattle area (2016-2017 stats) we see a push to create more laws that would attempt to make the public a safer place. Sometimes even the best intentions can be counterintuitive.

For the majority of the population, we follow the laws that we have put into place, they keep us from infringing upon others property or rights and provide avenues of redress in instances when the need arises. The application of current laws get muddled at times, especially in the instances related to firearms, (RCW 9.41 et al and title 18 USC 922, 924 etc.).

What do I mean and why do I say this? It has been my experience of 24 years working with prosecutors that in the vast majority of cases where firearms are a component of a crime, it is rarely the focus of the conviction. Firearms crimes convictions bring a heavy toll to an individual, the families involved and the communities, but that is why, if applied appropriately that "would" be such a deterrent.

The unfortunate fact is that the majority of cases involving firearms are used predominantly as a leverage tool to plea out the underlying case. This eviscerates the intent of the deterrent and use of firearms in a crime by criminals.

The Firearms Crime Enforcement Coalition's "Behind the FACE" program had no intention of this ever being the case when we began our education programs back in the early 2000's, but programs get forgotten.
Today, with the rush to solve mass shootings, we forget to look at who, how and what we have in place and why things are currently ineffective.

Additionally, new laws will never solve problems for the law abiding populace, period. A criminal will never abide by a current law and certainly not by any new one.
In reviewing the latest rounds of shootings one thing is clear, in each incident, someone else knew or had a suspicion, there was some type of decompensating in mental stability in the individuals and those that did know something either did not know how to react to the individual or felt it wasn't there place or responsibility to do so. An individual intent of killing multiple targets will use whatever means available to them. A truck or van is just as good an interment of death for mass killing a firearm and just because we haven’t seen that as often doesn’t mean it will not become the new norm if firearms become that less available. It’s about the psychology of the killers not the weapons of choice, but this train of thought seems to fall short with many others, why is something I struggle with.

The US is not like any other country in the world, its people cannot be easily fit into a small neat category. It has a rich, and some might argue, unhealthy history with firearms and this will never go away, at least not in my lifetime. While I am not here to debate this fact, I am pointing out that this is something that is rooted into or history and culture.
Life is full of choices, we can all place blame on everyone else and try and point fingers here and there, ultimately people need to start looking at themselves and taking a bit more accountability for how one tends to speak at, rather than speak with others and take some initiative to actually listen to opposing points of view. You never know, you might just lean something, I know I have over the years.